Indigenous, Indian, and Aboriginal Law Commons^™

Shareholder Expression In A Time Of Heightened Political Tension, Aaron A. Dhir

Seattle University Law Review

In this article, I provide context for my forthcoming research project on shareholder proposals and racial equity audits. Since the murder of George Floyd in May of 2020, progressive shareholder actors have increasingly used the proposal mechanism to advance diversity, equity, inclusion, and justice-related goals. These proposals have frequently gone beyond requesting the usual corporate fare of diversity trainings, intersectionality workshops, affinity groups, etc. Instead, a more ambitious type of proposal asks corporate America to conduct racial equity audits, defined as “an independent, objective and holistic analysis of a company’s policies, practices, products, services and efforts to combat systemic racism …

Corporate Governance Speech, Sarah C. Haan

Seattle University Law Review

The State has always regulated the intra-firm communications that make corporate governance possible, most commonly by mandating disclosures of information by a corporation to its shareholders. Some such laws are labeled “securities regulation,” but securities regulation is a broad category that extends to speech by actors who are outside the corporate enterprise as well. Also, the conventional securities regulation category does not capture all such laws; other examples, including informationforcing mandates, can be found in state corporate law. This Article uses the term “corporate governance speech” to describe the communications among shareholders, directors, and officers through which corporate governance is …

Dark Accounting Matter, Colleen Honigsberg

Seattle University Law Review

Physicists calculate that approximately 85% of the matter in the universe is composed of “dark matter” that “does not absorb, reflect, or emit electromagnetic radiation and is therefore difficult to detect.” The S&P 500 currently trades at a price-to-book value of 4.2, suggesting that book value accounts for less than 20% of the S&P 500’s market value. The remaining 80% appears nowhere in these firms’ balance sheets—it is invisible to contemporary accounting techniques and constitutes “dark accounting matter.”

Some “dark accounting matter” is composed of factors commonly described as components of “ESG.” Human capital, for example, is an intangible asset …

The Employees’ Dilemma: Balancing Internal Reporting, Whistleblowing, And Insider Trading Risks, Geeyoung Min

Seattle University Law Review

The Essay examines how recent developments in insider trading regulations and whistleblower reward programs can lead to unintended and counterproductive results of discouraging employees from using internal reporting channels within corporate compliance programs. While the presence of a robust and well-functioning corporate compliance program is a critical factor both in mitigating the level of public enforcement actions against companies and in protecting corporate managers from liability in private litigation, these programs often provide little incentive for employees to report potential misconduct internally.

Corporate compliance programs are designed to promote the upward information flow within the company, which is essential for …

How The Antidiscrimination Law Of Commercial Transactions Really Works, Helen Norton

Seattle University Law Review

A variety of businesses now cite 303 Creative when seeking First Amendment protection for their refusal to serve certain customers based on those customers’ protected class status. How this litigation will play out remains to be seen. But future courts need not, and should not, repeat the 303 Creative Court’s misunderstanding of how the antidiscrimination law of commercial transactions actually works.

Part I of this Essay explains the Court’s longstanding understanding of the antidiscrimination law of commercial transactions, and then describes the Court’s failure to engage with this precedent in 303 Creative. Part II then identifies the 303 Creative decision’s …

Understanding The Big Three’S Wavering Support Of Environmental And Social Shareholder Proposals, Jeff Schwartz, Jefferson Jensen

Seattle University Law Review

Because of their substantial equity portfolios, BlackRock, Vanguard, and State Street (the Big 3) are central players in corporate governance. It is, therefore, critical to understand how they vote. One puzzle is that their support for shareholder proposals on environmental and social matters appears to waiver. In 2020, for instance, BlackRock supported 11.1% of environmental proposals at S&P 500 firms. In 2021, it seemingly reversed course, supporting 55.2%. It then flipped again, supporting 32.1% in 2022. Such statistics suggest that the Big 3 are constantly changing their views on these topics. This Article seeks to better understand whether this is …

Volume 48 Masthead, Seattle University Law Review

Seattle University Law Review

Volume 48 Masthead

Affording Oral Tradition Evidence Due Weight Before The International Court Of Justice, Terrence Neal

Faculty Scholarship

Oral traditions are irreplaceable sources of historical information, particularly with regard to Indigenous Peoples’ histories and cultures. However, when states have submitted oral traditions as evidence of historical practices, events, and circumstances in cases before the International Court of Justice (“Court”), the Court has been reluctant to afford them significant weight. This Article, which is the first detailed study on the Court’s treatment of oral traditions, examines whether the Court is failing to provide them due or appropriate weight. Based on historical, archaeological, and anthropological research, it establishes that oral traditions can be as reliable as written documents for reconstructing …

Legal Pluralism In Canada And The Vitality Of Indigenous Law, Kent Mcneil

Conference Papers

State law in Canada consists of the civil law in private law matters in Quebec and the common law in public law matters there and generally in the rest of the country, supplemented by legislation. Legislative authority is divided by the Constitution Act, 1867,1 between the federal government and the ten provinces. In addition, the three territories – Yukon, Northwest Territories, and Nunavut – have legislative authority that has been delegated to them by the Parliament of Canada. This federal division of powers means that there is federal law that is generally uniform throughout Canada (e.g. criminal law) and provincial …

Blood Quantum And The Auto-Colonization Of The Michigan Anishinaabek, Matthew L.M. Fletcher

Book Chapters

Anishinaabe storyteller Basil Johnston described the chronological path of life in four stages, what he called the four hills of life. The first stage, linked to the East, is infancy and early childhood, a time of preparation and listening. The second stage, linked to the South, is youth, a time of doing things. The third stage, linked to the West, is adulthood, a time of vision. The fourth stage, linked to the North, is Old Age, a time of the fulfillment of the vision and a time of sacred learning and teaching.

The twelve Michigan Anishinaabek tribal nations are in …

#Taxback? Prohibiting State Real Property Taxes On Land In Indian Country, Pippa Browde

Marquette Law Review

Land is a critical asset of Indian tribes. As tribes wrestle with how to create sustainable economies to support their sovereignty, the use and management of tribal land is integral. Taxation is a key component of economic development. This Article is about taxation of land within Indian country. It considers existing law that allows for state taxation of some land within Indian country. It makes a normative claim as to who the proper taxing sovereign should be based on tax policy principles and principles that support tribal self-governance and tribal sovereignty.

In Part II, this Article provides the background for …

The Utmost Rights And Interests Of The Indians: Tribal Law Interpretations Of The Indian Civil Rights Act, Kekek Jason Stark

Faculty Law Review Articles

It has been more than fifty years since Congress enacted the Indian Civil Right Act (hereinafter “ICRA”) and more than forty years since the United States Supreme Court in Martinez articulated that the tribal courts are the proper forum for the adjudication of ICRA claims. In the decades since, tribal courts have developed a rich body of intertribal common law pertaining to the implementation of the ICRA. This comes after over a century of assimilative policies in which the federal government attempted to eradicate native culture and traditions and subjected Indians to the deprivation of individual rights by federal and …

Resistance: The Mura Struggle Against Canadian Potash Mining In Brazil’S Amazon, Cardozo Law Institute In Holocaust And Human Rights (Clihhr), Federal University Of Rio Grande Do Sul, Graduate Program In Law (Ppgd/Ufrgs), International Human Rights Program (Ihrp), University Of Toronto Jackman Law, Observatory Of Socio-Environmental Law And Human Rights In The Amazon (Odsdh/Ufam)

CLIHHR Reports & Policy Submissions

A comprehensive human rights and environmental report documenting the Mura Indigenous people’s resistance to Brazil Potash’s Autazes Potash Project in the Brazilian Amazon. The report details environmental risks, human rights violations, failures in consultation processes, litigation history, corporate accountability, and the ongoing struggle for land demarcation.

Green Dividends: A Case Study In Green Dividends And The Conditions For Private Ordering Solutions, Anne M. Tucker

Seattle University Law Review

This Essay introduces a novel private ordering solution to facilitate corporate investments in pro-social and environmental initiatives: Green dividends. Green dividends are an optional increase in shareholder dividends that are returned to the company to be reinvested in environmental initiatives or kept by a shareholder.

Green dividends pose an alternative to the current gridlocked debate that corporations can’t, won’t, shouldn’t, and shouldn’t even try to act in pro-social or environmental ways. Turning the common refrains on their head converts each narrative into an element for a successful private ordering solution: authority, accountability, shareholder buy-in, and government- backed enforcement. With Green …

Does Climate Disclosure Work To Reduce Greenhouse Gas Emissions? Emerging Evidence Suggests Cautious Optimism, Cynthia A. Williams

Seattle University Law Review

Significant regulatory resources have been spent developing global, voluntary climate and sustainability disclosure standards, such as the TCFD, TNRD, and ISSB’s Sustainability and Climate Disclosure standards, or domestically required disclosures, such as in the EU and in the U.S. Thus, it is important to evaluate whether this disclosure, particularly voluntary, qualitative disclosure, will have the power to shift the allocation of capital, will have a significant effect on the management of climate risk within firms, and ultimately will reduce climate change risk and biodiversity loss.

In this Article, several interrelated questions will be discussed. First, what does the empirical evidence …

Volume 48 Masthead, Seattle University Law Review

Seattle University Law Review

Volume 48 Masthead

Identifying Intangible And Biocultural Heritage Elements Toward Environmental Understanding: Engaging Stakeholders Through Art, Martha B. Lerski

Publications and Research

Grounded in a case study in Barbuda in the Caribbean, this research examines sustainability from the perspective of what arts and heritage can contribute to community engagement and local and broader understandings about the environment. This article documents a growing body of literature recognizing the role of arts and culture, including local knowledge and traditional ecological knowledge (TEK), in climate change endeavors. Art and TEK present expansive world views. Contextual information situates research done on the island of Barbuda pre- and post-Hurricane Irma. Visual arts workshops engaged community members in mixed methods research. Results documented cultural elements, particularly intangible and …

How To Teach A Course On Land Use And Anti-Jewish Discrimination, Michael Lewyn

FIU Law Review

In 2022, I was asked to teach a one-week mini-course within a broader course on “Structural Barriers and the Pursuit of Equity,” a course focusing on various forms of structural discrimination The course is typically taught by over a dozen professors from various parts of Touro University, each of whom teaches for a week on a different topic. I chose to teach on issues related to land use law (because my scholarship focuses on that area) and in particular how land use law has been used by and against traditionally observant Jews (because that is the religious tradition I am …

Robots And (Indian) Reservations: A Jurisdictional Nightmare Waiting To Happen, Adam Crepelle

Faculty Publications & Other Works

Advances in artificial intelligence are expanding the possibilities of robots. Indeed, robots are now engaging in numerous activities previously thought to require human cognition, such as driving cars and diagnosing diseases. Scholars have published numerous articles examining the intersection of law and robots across myriad fields. However, legal scholarship has yet to explore the relationship between robots and federal Indian law. This is a significant oversight because there are 574 federally recognized tribes and over fifty-six million acres of Indian country. Thus, legal issues involving tribes and robots are inevitable. This is the first law review article dedicated to exploring …

Tribes As Nations: The Future Of The Trust Relationship, Adam Crepelle

Faculty Publications & Other Works

Tribes are nations. This fundamental truth is often lost in the trust relationship. For most of the United States’ history, the trust relationship was used as a justification to control tribes and obtain their resources. The trust relationship took a new shape during the 1970s—tribal self-determination. Self-determination has resulted in many benefits for tribes; however, tribes still suffer from externally imposed constraints on their sovereignty, such as complex federal bureaucracy and limits on their jurisdiction. This Article argues removing the antiquated constraints on tribal sovereignty is required for the trust relationship to advance, and, once it advances, tribes will be …